December 08 2004
Until recently, Japan had no legislation directly regulating the protection of employee personal information. However, personal information under privacy rights is protected as a fundamental human right guaranteed in the Constitution. Therefore, if an employer maliciously or unreasonably uses or discloses any of its employees' personal information, the employer may be liable on tort or contractual grounds under the Civil Code.
On December 20 2000 the Ministry of Labour (now the Ministry of Health, Labour and Welfare) responded to the increased need to protect personal information by announcing Guidelines on the Protection of Employee Personal Information. These guidelines are not legally binding, but the ministry strongly has been recommending that all companies follow them. It was also likely that the guidelines would be used for guidance purposes where there was a need to determine whether an employer mishandled employee personal information and would be subject to liability.
Personal Information Protection Law
The Personal Information Protection Law was enacted in 2003. The law refers not only to the employer's obligation to protect its employees' personal information, but also to personal information collected and retained by third parties in general.
The provisions of the law applicable to government functions, including public officers, came into effect in 2003. The remaining provisions, applicable to private enterprises, will come into effect on April 1 2005. These include regulations that employers are required to comply with when handling employees' personal information.
To complement the law's enactment, on July 1 2004 the Ministry of Health, Labour and Welfare announced new guidelines to specify employer obligations under the law. The guidelines include Measures for Employers to Ensure Appropriate Handling of Employee Management-Related Personal Information. The new guidelines will also become effective on April 1 2005.
The Personal Information Protection Law and the new guidelines apply only to employers dealing with personal information for 5,000 or more employees. Therefore, affected employers must ensure that they understand their fundamental obligations to comply with the law and the guidelines.
Employers with fewer than 5,000 employees may, if they desire, ignore implementation of the law and the new guidelines. However, the previous guidelines are still in full force and have not been rescinded.
The fundamental obligations under the law and the new guidelines are as follows:
Employers that do not comply with the new law may be subject to recommendations, instructions or orders by the Ministry of Health, Labour and Welfare. If employers do not follow the direction of the ministry, they may be subject to a jail sentence of up to six months or a fine of up to Y300,000. Administrative action has no effect on the civil liabilities of employers.
For further information on this topic please contact Yasuhiro Fujii at Tokyo Aoyama Aoki Law Office/Baker & McKenzie by telephone (+81 3 5157 2700) or by fax (+81 3 5157 2900) or by email (firstname.lastname@example.org).
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